Since its first use in President John F. Kennedy’s Executive Order 10925 in 1961, the phrase “Affirmative Action” has taken several different meanings, but its intentional purpose remains the same. The overall objectives of affirmative action policies are to combat inequality by promoting equal opportunity and ensure inclusions of minority groups in governmental and educational programs. However, implementing those objectives has proven to be both difficult and controversial. Opponents have questioned whether it is the government’s duty to interfere by means of affirmative action. In response, proponents remind us that the government actively supported slavery and discrimination against some groups in society, therefore has an obligation to rectify the social imbalance (Rabe 2001). Over the last few decades, race-conscious admissions policies in Higher Education have triggered a series of court cases questioning the purpose and legality of affirmative action. The purpose of this paper is to analyze some of the legal issues challenging affirmative action in school admissions policies, the courts’ positions and its past rulings, and the future of affirmative action in universities’ admissions policies.
Supporters like the NAACP argue that affirmative action is well needed corrective justice. On the other hand, there are those who argue, undoing one wrong with another only creates further injustice. According to Sowell (2005) affirmative action, is considered needed remedy to compensate for past oppression or exploitation by the ruling class of a culture and to deal with existing discrimination. This point of view is generally shared by the higher courts. Justice Brennan, along with Justices White, Marshall, and Blackmun agreed that universities' attempts to alleviate the effects of past societal discrimination was itself “sufficiently important to justify the use of race-conscious admissions programs where there is a sound basis for concluding that minority underrepresentation is substantial and chronic, and that the handicap of past discrimination is impeding access of minorities” (Bakke, 1978). However, it is necessary to note that several of the cases were initially ruled against affirmative action on the basis that a race-conscious admission policies could not be used for the purpose of remedying past discrimination, and/or that diversity is not a government’s compelling interest. This is an interesting tendency that is common among the lower courts. For example, delivering the opinion of the Fifth Circuit court in Hopwood v. Texas (1996), Jerry E. Smith writes
"The University of Texas School of Law may not use race as a factor in deciding which applicants to admit in order to achieve a diverse student body, to combat the perceived effects of a hostile environment at the law school, to alleviate the law school's poor reputation in the minority community, or to eliminate any present effects of past discrimination by actors other than the law school."
In higher learning institutions, supporters argue the overall benefits of having affirmative action outweighs the so called injustice that it creates. However, implementation of affirmative action policies is often very problematic due to its unconstitutional nature. Some argue that affirmative action defies the very principles for which it stands, as it is within itself a form of discrimination against unfavorable groups, violating protected rights of others, and fosters a non-competitive environment. (Regents of the University of California v. Bakke, 1978)
The unconstitutional aspect of affirmative action is a constant debate, and is often challenged in the courts. Legislatures have attempted to deal with affirmative action and admissions policies through different means. Many states successfully banned affirmative action through